01 Jul Planning Permission v Estate Management Consent

With space in London at a premium and property prices soaring year after year, people are increasing turning to the potentially valuable asset of a basement construction or expansion.

Many of our clients that are looking to create a basement own properties that are within historic estates, particulars in the West End of London, which are bound by Estate Management Schemes.

While most basement construction works will require planning permission, many basement developments will also require consent if the property is within such an Estate Management Schemes area.

With the recent increase in applications for basements (there has been around a tenfold increase in the last decade) including the ‘mega basements’ which have been much maligned in the press, both local authorities and Estate Managers have been using a far stricter approach when reviewing applications.

If the intended basement works is to a property within such an Estate Management Schemes area, it is important to consider both the requirements for planning permission and Estate Management consents.

Planning Permission

The purpose of the planning system and the need for planning permission, is to regulate building work and developments in the public interest. This role is carried out by the Local Planning Authority.

Planning permission is required for the “carrying out of any development on land”. The meaning of ‘development’ has been defined extremely widely to include the carrying out of building, engineering, mining or other operations in, on, over or under the land or the making of any material change in the use of any buildings or other land.

While converting an existing residential basement into a living space is unlikely to require planning permission, excavating to create a new basement will usually require planning permission from the Local Planning Authority. It should also be noted that most works to a listed building will require consent in any event.

To try and encourage construction works the coalition government introduced Permitted Development Rights being a national grant of planning permission which allow certain building works to be carried out without having to make a planning application. While for a time basements did not benefit from permitted development rights, a recent High Court decision has confirmed that a single story basement of 4 meters or less in height which is located at least 4 meters within the properties boundary can benefit from permitted development rights.

For developments not covered by the permitted development rights, the government has failed to provide advice regarding a planning policy for basements. For this reason the planning application experience can differ radically across the country depending on the Local Planning Authority that deals with the application.

Estate Management Consents

An Estate Management Scheme is something which applies to both leasehold and freehold properties on a designated ‘estate’.

Historically the estate, the land and all the properties on it would have been controlled by a person or organisation, typically a large land owner such a member of the aristocracy or the Crown.

This position changed in the 1960’s with the introduction of the Leasehold Reform Act 1967. This Act had the effect of modernising the ways Landlords interacted with the lessees and provided for the right of enfranchisement: the opportunity for the lessees to buy the freehold of their property.

While this created new freehold owners, the Law has caveated these rights and has permitted former land owners to have continuing rights over the properties through Estate Management Schemes. Estate Management Schemes allow the former land owner to place restrictions on the individual freeholders on the estate including when undertaking works and importantly they can also require both leaseholders and freeholders to obtain prior written consent before undertaking any works or alterations to the property. This written consent is a separate and distinct to a planning application made to the Local Planning Authority.

How we can help

Without any experience in the area, making a successful planning application or seeking consent from an Estate Manager can be a daunting task.

Our experienced team of construction lawyers can help guide you through the initial process of making a planning application or seeking consent from an Estate Manager right the way through the contractual negotiation, construction stage and beyond.

Our strong commercial awareness runs through all of our advice to ensure that we always consider the project as a whole and that our advice is constantly focussed and relevant to each individual client’s needs.